ALIAS Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner in O.P.No.5511 of 1994 is a registered A Class contractor (hereinafter referred to as 'tenderer') and he has been undertaking several contracts under Public Works Department. His main grievance is directed against cancellation of his tender for MVIP works which was accepted by the Superintending Engineer on 19-3-1994 and consequent issue of Ext. P11 notification ordering re-tender. Prior to the issue of Ext. P11 the Government have passed an order as per proceedings No.7579/ IR3/94/IRD dated 29-3-1994 directing to cancel the three tenders already received and to re-tender the three different items of work. In this writ petition we are concerned with the first tender referred to in the above proceedings of the first respondent State of Kerala, namely "MVIP Constructing LBMC from Ch.29000 m. to 29417 m. including 2 Nos, acquaducts flumes etc." This order has been produced as Ext. R1 along with the counter affidavit filed on behalf of the Government who is the first respondent in O.P.No.5511 of 1994.

(2.) The tenderer along with 15 others submitted applications for the completion of pre-qualifications proceedings. Ext. P1 is a copy of the proceedings of the Superintending Engineer declaring the tenderer to be qualified, for submitting tenders for the MVIP construction. Consequently he submitted his tender for the above work along with other qualified tenderers. After negotiations the tenderer has agreed to reduce his tender to 34.5 above the estimated rate. On the basis of the said negotiation, his tender had been accepted as being the lowest by the Superintending Engineer. By Ext. P3 communication issued by the Superintending Engineer the tender submitted by the tenderer was accepted. In Ext. P3 he has stipulated that the work should be completed within a period of eighteen months from the date of handing over the site. The Superintending Engineer thereafter directed the tenderer to execute an agreement and also to deposit an amount of Rs. 1 lakh in the treasury being the deposit for the fulfilment of contract. In obedience to the said direction, the tenderer had duly executed the agreement and deposited an amount of Rs. 1 lakh. Ext. P4 is a copy of the agreement and Ext. P5 is the receipt obtained for the above deposit of Rs. 1 lakh. By Ext. P6 the Superintending Engineer forwarded the copy of agreement to the Accountant General. On the basis of Exts. P4, P5 and P6 the tenderer had made all the arrangements for the immediate execution of the work, particularly in view of the stipulation contained in Ext. P3 that the work should be completed within a period of eighteen months. The tenderer legitimately expected that within the reasonable time the site would be handed over to him for the execution of the work. However, there was no immediate response. The tenderer therefore sent Ext. P7 communication requesting the Executive Engineer to hand over the site. Even thereafter the site was not handed over. Though on behalf of the tenderer a notice was issued to the Executive Engineer as per Ext. P8 calling upon him to hand over the site, ultimately without affording any opportunity to the tenderer a re-tender of the work was ordered as per Ext. P11. Ext. P11 proceeding is, inter alia, challenged in O.P.No.5511 of 1994.

(3.) O.P.No.4884 of 1994 has been filed by a resident of Kadalikkad village (hereinafter referred to as the 'objector') for a direction to respondents 1 to 3 therein to call for open tenders without pre-qualification specifications for the works under the M.V.I.P. The objector has filed Ext. P1 representation before the Government. The case of the objector is that the Government had called for the files pursuant to his representation for being examined by the Chief Technical Examiner and that it was thereupon found the allegations to be correct. His further case is that the enquiry conducted by the Chief Technical Examiner is found correct on the basis of the report submitted by him. Substantially his grievance is against the grant of contract work in favour of the tenderer and therefore he prays for cancellation of all tenders.